US Third Circuit Rejects “Scope of the Patent” Test in K-Dur

July 19, 2012
Earlier this week, the U.S. Court of Appeals for the Third Circuit issued its long-anticipated decision in In re K-Dur Antitrust Litigation. The court rejected the “scope of the patent” test that has been almost uniformly adopted by other courts of appeals, deepening the circuit split and making the issue ripe for Supreme Court review. The K-Dur decision is important because it makes it more difficult for parties to settle patent disputes in circumstances where the settlement involves some form of payment from the brand-name drug manufacturer to the manufacturer of the generic drug. In this update, we review the decision and its implications for parties involved in pay-for-delay cases.